Davila v. Lang

• Decision Date: 23 October 2018
• Docket Number: 1:18-cv-6164-GHW
• Citation: 343 F.Supp.3d 254
• Parties: Carlos DAVILA, President of A New Beginning for Immigrants Rights, Inc., Plaintiff, v. Steven LANG, Director, Office of Legal Access Programs, Defendant.
• Court: U.S. District Court — Southern District of New York

343 F.Supp.3d 254

Carlos DAVILA, President of A New Beginning for Immigrants Rights, Inc., Plaintiff,

v.Steven LANG, Director, Office of Legal Access Programs, Defendant.

1:18-cv-6164-GHW

United States District Court, S.D. New York.

Signed October 23, 2018

Carlos M. Davila, Bronx, NY, pro se.

Jacob Thomas Lillywhite, U.S. Attorney's Office, New York, NY, for Defendant.

MEMORANDUM OPINION AND ORDER

GREGORY H. WOODS, United States District Judge

Plaintiff Carlos Davila is the founder of A New Beginning for Immigrant's Rights, Inc. ("A New Beginning"), an immigrants' rights organization. Through A New Beginning, Davila participated in the Department of Justice's Recognition and Accreditation Program ("R & A Program"), which permitted him to represent individuals in immigration proceedings as a non-attorney. The Department of Justice revoked Davila's accreditation pursuant to new program requirements governing the eligibility of non-attorney representatives after they learned that he had been convicted of first-degree manslaughter in 1988.

Defendant Steven Lang is the Program Director of the Office of Legal Access Programs ("OLAP"), the federal entity tasked with administering the R & A Program. Davila seeks to hold Lang, in his official capacity, liable for injuries that Davila allegedly suffered as a result of his accreditation being terminated. Specifically, Davila contends that his termination from the program violated his constitutional right to due process and was arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. § 702 et seq. Davila further argues that OLAP's decision to terminate him on the basis of his criminal history violates New York Correction Law Articles 23 and 23-a. In his opposition, Davila newly asserts that (1) Lang and OLAP are not entitled to sovereign immunity because the Government has consented to suit under the Religious Freedom Restoration Act; (2) Lang is not entitled to sovereign immunity because he is not a government employee; (3) Lang has defamed Davila; (4) OLAP's eligibility requirements for the R & A Program violate Title VII of the Civil Rights Act of 1964; and (5) Lang is barred from enforcing OLAP's revocation decision under the doctrines of equitable estoppel and laches.

Defendant Lang moved to dismiss all claims pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim on which relief may be granted. For the reasons that follow, Lang's motion to dismiss is GRANTED.

I. BACKGROUND

A. Factual Background

The facts here are substantially the same as those set forth in related case Davila v. Gutierrez et al., 330 F.Supp.3d 925 (S.D.N.Y. 2018), which are restated in part below.

In 2011, Davila founded A New Beginning, an organization that provided assistance to undocumented immigrants regarding "the Protection of their Rights under the Constitution of the United States, Human Rights, and their Rights under the Vienna Convention." Id. at 931. Davila, through A New Beginning, participated in the Department of Justice's Recognition and Accreditation ("R & A") program from 2011 until 2017. Complaint (ECF No. 1-1) ("Compl.") at ¶¶ 10–11. The R & A program allows non-attorneys within non-profit organizations to act as authorized representatives for individuals in immigration proceedings before the Executive Office for Immigration Review ("EOIR") and the Department of Homeland Security ("DHS").See 8 C.F.R. §§ 1001, 1003, 1103, 1212, and 1292 (2016). The Office of Legal Access Programs ("OLAP"), a component of the EOIR within the Department of Justice ("DOJ"), administers the R & A program. See 8 C.F.R. §§ 1001, 1003, 1103, 1212, and 1292. Davila served as an accredited representative in the R & A program. See Compl. ¶ 10–12.

On December 19, 2016, DOJ published new regulations governing the R & A program. The new regulations transferred the administration of the program from the Board of Immigration Appeals to the Office of Legal Access Programs and promulgated modified eligibility criteria and procedures for the program. See 8 C.F.R. §§ 1001, 1003, 1103, 1212, 1292. Among the new rules promulgated was the eligibility requirement that an individual "[have] not been found guilty of, or pleaded guilty or nolo contendere to, a serious crime, as defined in 8 C.F.R. § 1003.102(h), in any court of the United States, or of any State...." 8 C.F.R. § 1292.12(a)(5). Section 1003.102(h) defines a "serious crime" as any felony and certain enumerated misdemeanors.

Davila was convicted of manslaughter in the first degree in 1988. See Pl.'s Am. Opp'n to Def.'s Mot. to Dismiss (ECF. No. 14) ("Pl.'s Am. Opp'n") at 6. Upon learning of Davila's 1988 conviction, the Office of Legal Access Program sent A New Beginning a letter, dated May 10, 2017, terminating Plaintiff's R & A program accreditation pursuant to 8 C.F.R. § 1292.12(a)(5). Compl. at 3; Pl.'s Am. Opp'n at 6; Exhibits to Pl.'s Opp'n to Mot. to Dismiss (ECF No. 13) ("Exs. to Pl.'s Opp'n") at Ex. A.

B. Procedural History

On July 5, 2017, Davila initiated Davila v. Gutierrez et al. against several reporters, news entities, and federal defendants. No. 1:17-cv-5032 (ECF No. 1). The federal defendants in Gutierrez included the named Defendant here, Program Director of the Office of Legal Access Programs Steven Lang, as well as the United States, Attorney General Jeff Sessions, Acting Director of the New York City District of United States Citizen and Immigration Services John Thompson, and United States Representative Nydia Velázquez. Id. In Gutierrez , Davila raised state law tort claims of defamation, intentional infliction of emotional distress, and invasion of privacy, as well as federal constitutional and APA claims.

Gutierrez , 330 F.Supp.3d 925. On June 25, 2018, Davila voluntarily dismissed his claims against Lang, Sessions, and Thompson pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i). Id. Davila continued to pursue his claims against the remaining federal defendants. Id.

On June 8, 2018, Davila commenced this action pro se in the Supreme Court of the State of New York, County of Bronx against Lang, again raising claims that his termination from the R & A program was arbitrary and capricious and in violation of his right to due process. Notice of Removal (ECF No. 1); Ex. A to Removal, Compl. at ¶¶ 64–76. In addition, Davila newly contends that OLAP's new policy of denying accreditation to persons with serious criminal convictions violates New York Correction Law Article 23 and 23-a. Compl. ¶¶ 77–82.

On July 6, 2018, Lang removed the case to federal court. See Notice of Removal. On August 3, 2018, Lang moved to dismiss the complaint. Def.'s Mot. to Dismiss (ECF No. 10–11) ("Def.'s Mem. of Law"). On August 17, 2018, Davila filed an opposition to the motion to dismiss, with supporting exhibits. Pl.'s Opp'n to Def.'s Mot. to Dismiss (ECF No. 13) ("Pl.'s Opp'n"). On August 20, 2018, Davila filed an amended version of his opposition brief, alleging new facts and raising new legal arguments. Pl.'s Am. Opp'n to Def.'s Mot. to Dismiss (ECF. No. 14) ("Pl.'s Am. Opp'n"). On August 27, 2018, Lang filed a reply. Def's Rep. to Pl.'s Opp'n to Def.'s Mot. to Dismiss (ECF No. 15) ("Def.'s Rep.").

On August 29, 2018, the Court granted the United States' motion to dismiss in Gutierrez .

II. LEGAL STANDARD

"A court presented with a motion to dismiss under both Fed. R. Civ. P. 12(b)(1) and 12(b)(6) must decide the jurisdictional question first because a disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction." De Masi v. Schumer , 608 F.Supp.2d 516, 523–24 (S.D.N.Y. 2009) (internal quotation marks and alterations omitted) (citing Homefront Org., Inc. v. Motz , 570 F.Supp.2d 398, 404 (E.D.N.Y. 2008) ; Arar v. Ashcroft , 532 F.3d 157, 168 (2d Cir. 2008) ).

Pursuant to Rule 12(b)(1), the Court must dismiss a claim when it "lacks the statutory or constitutional power to adjudicate it." Morrison v. Nat'l Austl. Bank Ltd. , 547 F.3d 167, 170 (2d Cir. 2008) (internal quotation marks omitted); see also Arar , 532 F.3d at 168 ("A federal court has subject matter jurisdiction over a cause of action only when it ‘has authority to adjudicate the cause’ pressed in the complaint." (quoting Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp. , 549 U.S. 422, 425, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) ) ). "The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys., Inc. , 426 F.3d 635, 638 (2d Cir. 2005). When considering a motion made pursuant to Rule 12(b)(1), "the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of the plaintiff." Raila v. United States , 355 F.3d 118, 119 (2d Cir. 2004).

"[T]he United States, as sovereign, is immune from suit save as it consents to be sued." Lehman v. Nakshian , 453 U.S. 156, 160, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981) (internal quotation marks and citation omitted). The United States, therefore, "cannot be sued at all without the consent of Congress," and "when Congress attaches conditions to legislation waiving the sovereign immunity of the United States, those conditions must be strictly observed."

Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands , 461 U.S. 273, 287, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983). "The doctrine of sovereign immunity is jurisdictional in nature, and therefore to prevail, the plaintiff bears the burden of establishing that her claims fall within an applicable waiver." See Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000) (citations omitted).

A. Standard of Review Under Rule 12(b)(6)

To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct....